Montalalou v. Coombe

Judgment unanimously affirmed without costs. Memorandum: Petitioner appeals from a judgment dismissing his CPLR article 78 petition that challenged a determination finding him guilty of violating inmate rule 113.12 (7 NYCRR 270.2 [B] [14] [iii] [use of a controlled substance]). The determination was based on a misbehavior report that stated that a urine sample provided by petitioner tested positive for cannabinoids. That test complied with the EMIT procedures, and “can constitute substantial evidence to support [a] determination finding an inmate guilty of violating a rule prohibiting the use of a controlled substance” (Matter of Lahey v Kelly, 71 NY2d 135, 138). We reject the contention of petitioner that he is entitled to an independent test of the urine sample, conducted at his own expense (see, Matter of McPhee v Coombe, 233 AD2d 963, lv dismissed 89 NY2d 1026). (Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J.—CPLR art 78.) Present—Denman P. J., Hayes, Callahan, Doerr and Fallon, JJ.